Tuesday, January 04, 2011

On punishment

A commenter asks some pertinent and perspicacious questions regarding my stance on punishment:
What is to be done to those that commit crime? Do not crimes such as rape and murder dictate punishment?

First, I want to be explicit about what I mean by "punishment": I mean the intentional infliction of suffering on a human being for its own sake, either in retribution or in the belief that the suffering itself will have some salutary effect. I do not mean suffering inflicted as an accidental or ancillary effect of some other purpose, even if foreseeable. Thus, the pain and suffering a child experiences from having a vaccination does not count as "punishment"; if someone were to have a virulent communicable disease, quarantining her — entailing suffering from loss of liberty — would not constitute punishment.

We can, without actually punishing people per the above definition, respond to crimes (ignoring for the moment what constitutes a "crime") in two ways. First, we must ensure that on average "crime does not pay": We may legitimately, I think, demand that criminals bear the cost of their crimes, and assign to criminals who are caught recompense for those criminals not caught. Second, we may legitimately take reasonable steps to ensure the criminal does not If a person were to steal, he would responsible for not only what he himself stole, but for a portion of what uncaught thieves also stole.

A person who has committed a crime has proven that he will not voluntarily honor the social contract, explicit or implicit; We cannot trust his protestations that he will in the future change his ways. We must, I think, restrict his liberty in such ways that it becomes impractical to commit future crimes.

It is important to note that in today's society, imprisonment imposes considerably more suffering than is necessary to simply restrict a prisoner's liberty and ability to commit further crimes.

5 comments:

  1. Can you flesh out what you mean by “restricting liberty to become impractical to commit future crimes”? (Paraphrased, but I believe it contains the gist.)

    Frankly, I think this is unworkable—while you may provide an alternative to traditional prisons, I think you will continue to sustain the same underlying problem of inflicting suffering for retribution or hopes of rehabilitation.

    Further, you picked a softball example—stealing. Great, so the person pays recompense plus—what if (as in the vast majority of cases) they simply don’t have it? Curiously, the greatest motivation for a person to pay fines and cost (let alone restitution) is the threat of jail. What alternative do you propose?

    And let’s get away from the easy crimes. What about assault? I punch you in the face because I don’t like you—what do you propose to 1) rectify your broken face and 2) prevent me from doing it to the next bloke? Of course, we really start to wrestle when it comes to severe crimes like rape, kidnapping and murder.

    Or what of the actions that have potential to cause harm—such as drunk driving, or felons owning guns?

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  2. Can you flesh out what you mean by “restricting liberty to become impractical to commit future crimes”?

    It's a practical problem, and I'm open to creative solutions, but I'm basically talking about imprisonment. Of course, prisons today are about a lot more than just restricting freedom of movement: they are designed and structured to inflict suffering for its own sake, either for the purpose of "correction" or "penitence" (the root of "penitentiary"). I propose removing the extra suffering; the suffering caused by lack of liberty would be accidental, not intentional.

    Right now, prisoners cannot legally object to their treatment merely because it inflicts suffering beyond what is necessary to restrict their freedom of movement. Prisoners today lose almost all of their rights, even their right to free speech. Imprison them, yes, for our own protection, but the imposition of suffering beyond what is justified for self-protection is just cruelty and sadism.

    I think you will continue to sustain the same underlying problem of inflicting suffering for retribution or hopes of rehabilitation.

    Restricting the liberty of someone for your own protection is not inherently retributive. I think fundamentally it is contradictory to attempt to coercively "rehabilitate" a free person, at least a person who is politically and psychologically free. A person who is coercively "rehabilitated" is almost by definition not fit to rejoin a society of free people.

    Great, so the person pays recompense plus—what if (as in the vast majority of cases) they simply don’t have it? Curiously, the greatest motivation for a person to pay fines and cost (let alone restitution) is the threat of jail. What alternative do you propose?

    We don't have to imprison a person; although we should be suspicious, we can believe them if we choose when they say they've changed their ways. If they do not actually make the restitution, we would be justified in thinking them more likely to reoffend, and thus justified in imprisoning them for self-protection.

    What about assault? I punch you in the face because I don’t like you—what do you propose to 1) rectify your broken face and 2) prevent me from doing it to the next bloke?

    As to (1)... Hmmm... if only there were some profession whose practitioners traditionally assigned and justified dollar amounts to violations of personal rights... Any help, readers?

    As to (2)... the perpetrator would be at worst imprisoned, but without the additional suffering and loss of rights currently in our penal system, until he could convince a judge he would not re-offend.

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  3. Of course, we really start to wrestle when it comes to severe crimes like rape, kidnapping and murder.

    Those are actually easier: You'll go to prison for life, no parole. If you actually intentionally kill someone, I don't see how the other members of society could ever trust you again. Again, though, prison entails only loss of liberty; once you're in for life, further sadism offers no benefit to a humanist society.

    Or what of the actions that have potential to cause harm—such as drunk driving, or felons owning guns?

    Well, if you don't cause any personal damage, then you would be liable for only the "unpunished" damage. And again, if you pose a credible threat, as demonstrated by your actions, we are still morally entitled to restrict your liberty from self-protection.

    Again, I really want to make it clear: I claim imprisonment for only self-protection is morally justified with rational, material cause. I object to the additional suffering and loss of rights other than freedom of movement which is intentionally inflicted on prisoners today.

    I am also in favor of creative solutions for people who make simple mistakes. If you drive drunk, but you can convince a judge it was an error of judgment, and not an uncorrectable disregard for the safety of others, then I would find acceptable lesser measures to prevent reoffense.

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  4. If I understand you correctly, you are referring to prison reform, rather than elimination of prisons. I agree with you—our prison conditions are deplorable. Unfortunately it comes down to a matter of money. Request a budget increase to funnel more funds toward prisons and fewer funds toward road repair, and watch the citizenry howl! The general thought is, “They committed the crime; let them do the time,” where “the time” means spending as little as possible on anything considered remotely humane.

    The next consequence of money squeeze is not having enough room. Judges are sending more people to serve time than beds available. Creating conditions even less humane. (Like gyms with 100 cots.) One of the easiest release valves (in my opinion) would be to legalize drugs, thus reducing a large number of drug-related prison sentences and freeing up numerous beds. Not the focus of this blog entry, of course.

    And, not considered popular either, as reflected by the recent marijuana vote in California.

    Technically, prison is designed a punishment—penalty for violating societal standard. It is not retributive, protective, rehabilitative, nor deterrent. As society modifies, however, it has taken on those characteristics. Since they are in prison already, why not spend the time preventing future similar behavior--thus introducing coerced rehabilitation. A law suspending your driver’s license for 60 days if you smoke pot (even though one has absolutely nothing to do with the other) is certainly an effective deterrent.

    Once the law/prison system is in place it is simple for the government (at public whim) to mold the system toward such things as retribution, protection, etc.

    I find the combination “protection of society” and “demonstration of failure to repeat” interesting. At the moment, it is unworkable—too difficult to predict who a repeat offender would be and who is not. We already have enhanced sentences for repeat offenders, yet they still do so again and again. How many “strikes” do we give them? One? Two? None?

    Further you would almost need an outside agency to make such predictions. We, within the system, are too…jaded. Personally, I believe child molesters are non-rehabilitative. (Others disagree.) If it was up to me, lock ‘em up and throw away the key. Drunk driving is much more difficult. I know people who were convicted once and stayed clean for decades…only to do it again. Others repeat as fast as they get out of jail. And, for full anecdotal effect, others do once and never again.

    What is it, in particular, you believe is cruel and unusual in the current prison system?

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  5. What is it, in particular, you believe is cruel and unusual in the current prison system?

    I don't really have anything specific in mind; I was originally just reacting to IOZ's post. I watch shows like OZ and hear stories about non-fictional prisons and I'm deeply ashamed of my... well, we call it a civilization.

    But in general, doing the "moral" thing is often difficult, especially when immorality is entrenched. <shrugs> The difficulty of moral action doesn't by itself invalidate the critique. Slavery was pretty well entrenched and took a rather large war to superficially eradicate, and more than a century to actually deliver basic civil rights to black people.

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